Terms of Service – DRAFT
Last updated May 25, 2020
Welcome to FanJolt.com (the “Site”) and the FanJolt mobile applications (the “Application” and together with the Site, the “Service”). These Terms of Service (the “Terms”) for a legally binding contract between you and FanJolt, LLC, a Georgia limited liability company (the “Company”, “we”, or “us”), which owns and provides the Service.
In these Terms, “you” and “your” refer to the individual or entity that uses the Site, Application or Services. Each person who completed the account registration process through the Service is referred to herein as a “Member.”
We may modify or replace these Terms at any time. After any change, existing users will be notified through email or in the Application. Each time you access or use the Service, you agree to be bound by the most recent version of the Terms, so please check this document often. The date on which these Terms were last modified or replaced will be noted at the top. If you do not agree to be bound by all of the Terms in full, you may not access or use the Service.
1. Use of the Services
a. In order to use the Service, you must:
i. be at least 18 years of age or older and have the capacity to enter into legal binding contracts or be at least 16 years of age with the approval and supervision of a parent or legal guardian at all times, including during the performance of any Bookings (as defined below); and ii. represent and warrant that:
1. you understand and will comply with all applicable terms of any third party payment provider we may use, and you are not on a prohibited list of, nor been denied access to, the payment provider;
2. you are not banned from any aspect of our Site pursuant to any applicable law or regulation;
3. you (and any Site account that you created or control) have not been previously banned or removed from our Site for any reason; and
4. you are not a convicted sex offender.
b. You agree that, in the event of any payment dispute, you will provide to the Company all information requested by the Company. Members who have been found to abuse any payment dispute mechanism of any kind may be banned from the Service.
c. The Site is a platform for Members to connect and schedule phone calls, video calls, online chats, the recording of customized videos, or social media interactions (collectively, “Bookings”) with other Members. Any Member scheduling a Booking is referred to herein as a “Customer Member” and any Member providing a Booking is referred to herein as a “Talent Member.” Each Booking is made according to listings provided or posted by Talent Members through the Service (“Listings”).
d. You acknowledge and agree that you are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your use of the Service and any videos, graphics, images, text, software, or other content of any kind whatsoever (collectively “Content”) that you share, transmit, or access through the Service.
e. You acknowledge and agree that you will not, in using or accessing the Service or any Content:
i. create any Listing that violates the rights of any third party or that you do not have permission to create;
ii. impersonate any other person;
iii. create any Listing or engage in any Booking under false pretenses or with information that is inaccurate, untrue, or incomplete in any way;
iv. defraud or mislead any person;
v. engage in any transaction or solicitation other than Bookings;
vi. violate any federal, state, or local law, including any Tax obligation;
vii. send unsolicited or spam messages to any other person;
viii. register for more than one FanJolt Account or register for a FanJolt Account on behalf of an individual other than yourself;
ix. stalk, harass, or defame another Member or any other person;
x. create, or assist in creating, any service directly competitive to the Service;
xi. solicit any other Member for any purpose other than facilitating a Booking;
xii. circumvent the Service, or any offering by FanJolt or the Company Affiliates, as defined below, in order to receive any paid service from a Member that might be classified as a Booking if engaged through the Service;
xiii. share, post, transmit, or other distribute any Content of any kind that (a) infringes or violates any right (including copyright, patent, or trademark rights) of any other person; (b) is, as the Company may determine in its sole judgment, racist, sexist, homophobic, hateful, violent, or derogatory in any way; or (c) promotes anything that might be construed as violative of Section 1(d)(xiii)(i) or (ii) of these Terms;
xiv. use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm or methodology to access, acquire, copy or monitor the Service or any portion of the Service or for any other purpose, without the Company’s express prior written permission;
xv. disrupt the accessibility or network of the Service; or
xvi. copy, reproduce, modify, create derivative works from, distribute or publicly display any Content.
f. We reserve the right to modify or discontinue the Service or any feature of the Service at any time and without notice. We may make modifications to the Service at any time.
g. We may terminate your access to the Service at any time any for any reason, whether or not you are a Member. You may terminate your FanJolt Account, and thus these Terms, at any time and for any reason.
2. Marketplace Only
a. THE SERVICE IS AN ONLINE MARKETPLACE THAT CONNECTS MEMBERS THROUGH EITHER THE SITE OR THE APPLICATION IN ORDER TO FACILITATE BOOKINGS. THE COMPANY IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN MEMBERS, INCLUDING BOOKINGS. THE COMPANY DOES NOT CONTROL THE TYPE, QUALITY, OR ACCURACY OF THE LISTINGS OR THE PROVISION OF THE BOOKINGS. ALL BOOKINGS ARE CONSIDERED TRANSACTIONS DIRECTLY BETWEEN MEMBERS AND THE COMPANY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR LISTINGS OR BOOKINGS.
b. All Members are solely responsible for their Content. The Company may, but is not required to, monitor, delete, or revise Member Content. By using the Service, you acknowledge that you may view Member Content that you find offensive and agree that the Company shall in no way be held responsible.
c. The Company does not endorse any Member, Listing, or Booking. The Company does not guarantee that any Listing will be accurate or that any Booking will meet your needs or wishes.
d. Your sole legal remedy for any grievance related to any Booking, Listing, or Member shall be a claim against the relevant Member and you agree not to bring any claim for such a grievance against the Company or its Company Affiliates (as defined below). Unless you are expressly notified otherwise, grievances regarding Bookings or other Members must be directed to the Company and the Company will use its reasonable efforts to act as a facilitator between the parties.
3. FanJolt Accounts
a. You may be able to browse the Service without an account. However, you will be required to register for a unique account (“FanJolt Account”) and become a Member in order to access certain features of the Service. You agree that all information you submit for your FanJolt Account registration is accurate, complete, and correct in all respects.
b. Your FanJolt Account is for personal use only and may not be shared with any other person. You agree to be responsible for any use of your FanJolt Account, including any charges incurred.
4. Listings and Bookings
a. Talent Members may create Listings to offer Bookings to Customer Members. By creating a Listing, you agree that:
i. all information in the Listing is correct;
ii. you may not alter or modify the price listed any Booking (the “Booking Fee”) after it is purchased through a Listing;
iii. each Listing is an offer to provide a service which becomes accepted, and thus a binding contract between you and the Customer Member, upon purchase of a Booking;
iv. any Listing you create and the agreements you enter into with Customer Members (whether through Bookings or otherwise) (x) will not breach any agreements you have entered into with any other person and (y) will comply with all applicable laws.
b. The Company reserves the right, at any time and for any reason whatsoever, without any liability to you, to modify, remove or disable any Listing.
c. Talent Members may freely set a Booking Fee for each Listing. Booking Fees represent the total cost of the Booking. Certain portions of the Booking Fee may be paid to third-party charities or causes chosen by Talent Members at their discretion. The Company does not vet, endorse, or sponsor any of the selected third-party causes or charities and does represent that any amounts are tax deductible.
d. As a Customer Member, you agree to pay the Company all Booking Fees due in connection with any Booking. You hereby authorize the Company to charge your credit card or other payment method for the Booking Fees. If you are directed to the Company’s third-party payment processor, you may be subject to terms and privacy policies governing the use of that third-party’s payment processing services.
e. Members agree that they will use their best efforts to complete the Bookings according to the terms of each Listing. Further, Talent Members agree that they will use their best efforts to deliver any Booking related deliverables clearly and in usable formats. This may include, but is not limited to, (i) performing Bookings in places with suitable noise levels and internet connectivity and (ii) utilizing proper equipment to deliver the Bookings uninterrupted. The Company offers no refunds of any kind, even if Bookings are not complete or are unsatisfactory. In the event of a dispute between Members, the Company may make reasonable efforts to facilitate a resolution, but will not be obligated to do so.
f. As a Talent Member, you acknowledge that your payment terms will be controlled by the Talent Agreement executed directly between you and the Company.
5. Ownership and Use of Content
a. The Services and FanJolt Content are protected by copyright, trademark, and other laws of the United States various countries. You acknowledge and agree that all associated intellectual property rights are the exclusive property of the Company or its licensors, as applicable. You will not remove, alter or obscure any copyright, trademark, or other proprietary rights notices appearing within the Services or the Content.
b. Subject to your strict and complete compliance with these Terms, the Company grants you a limited, non-exclusive, non-transferable license, to (i) access and view any Content provided by the Company through the Service (the “FanJolt Content”) solely for your personal and non-commercial purposes and (ii) access and view any Content posted, shared, or transmitted by another Member (the “Member Content”) that you are permitted access, solely for your personal and non-commercial purposes.
c. You may not share, sub-license, distribute, or transmit any Content in any way unless expressly permitted to do so by the Company (in the case of FanJolt Content) or the Member owning the Member Content (in the case of Member Content). If a Member provides express approval to use the Member’s Content (including, but not limited to, Member Content delivered by a Talent Member or the Company as a result of a Booking), then you agree to use the Member Content only as and to the extent permitted by the respective Member.
6. FanJolt Member Content
a. Members may be permitted to post, upload, share, or transmit certain FanJoltMember Content through the Services. By posting, uploading, sharing, or transmitting any Member Content through the Services, you hereby grant to the Company a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content through the Services or through any other medium the Company may elect.
b. You represent and warrant that your Member Content is (i) owned exclusively by you or (ii) properly licensed to you for distribution through the Services. You further represent and warrant that your Member Content will not infringe upon the rights, including (without limitation) any trademark, copyright, or patent rights, of any other person. You agree to be solely responsible for any Member Content.
7. Copyright Policy
a. The Company takes claims of copyright infringement seriously. The Digital Millennium Copyright Act (“DMCA”) provides recourse to copyright owners who believe that their rights under the United States Copyright Act have been infringed by acts of third parties over the Internet. If an individual believes that their copyrighted work has been copied without authorization and is available within the Application in a way that may constitute copyright infringement, the individual may provide notice of their claim to the Company’s designated agent listed below. For the notice to be effective, it must include all of the following information:
i. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
ii. A description of the copyrighted work that is claim to have been infringed.
iii. A description of where the allegedly infringing material is located within the Service.
iv. Information reasonably sufficient to permit the Company to contact the complaining party, such as address, telephone number, and, if available, an e-mail address at which the complaining party may be contacted.
v. A statement that the person has a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law.
vi. A statement that the information in the notification is accurate and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
b. The Company’s designated agent can be reached at:
7485 Twin Branch Road
Atlanta, GA 30328
8. Limitation of Liability
a. YOU AGREE TO USE THE SERVICE, CONTENT, LISTINGS, AND BOOKINGS SOLELY AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE COMPANY, ITS SUBSIDIARIES OR AFFILIATES OR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, MERCHANTS, PARTNERS, THIRD-PARTY CONTENT PROVIDERS OR LICENSORS, OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS (COLLECTIVELY, THE “COMPANY AFFILIATES”), BE LIABLE FOR ANY DIRECT OR INDIRECT LOST PROFITS OR LOST BUSINESS DAMAGES, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF, RELATED TO, OR IN CONNECTION WITH ANY OF THE FOLLOWING: (A) YOUR USE OF THE SERVICE, CONTENT, LISTINGS, BOOKINGS, OR ANY INTERACTIONS WITH OTHER MEMBERS; (B) YOUR INABILITY TO USE THE SERVICE OR ANY BOOKINGS; (C) MODIFICATION OR REMOVAL OF CONTENT SUBMITTED ON THE SITE; (D) LISTINGS, BOOKINGS, AND OTHER PRODUCTS OR SERVICES ACCESSIBLE OR AVAILABLE THROUGH THE SERVICES; (E) ANY PRODUCTS OR SERVICES PURCHASED OR OBTAINED DIRECTLY FROM ANOTHER MEMBER; OR (F) YOUR BREACH OF THESE TERMS. IN NO EVENT WILL THE COMPANY’S LIABILITY TO YOU EXCEED THE SUM OF $500 FOR ALL AGGREGATE CLAIMS.
9. No Warranties
a. THE SERVICE IS PROVIDED AN “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS, WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUALITY, OR NON-INFRINGEMENT.
b. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE COMPANY DOES NOT WARRANT THAT LISTINGS, PRICES, OR CONTENT (INCLUDING DESCRIPTIONS) ARE ACCURATE OR CORRECT. ALL LISTINGS REPRESENT SERVICES PROVIDED STRICTLY BETWEEN MEMBERS.
a. You agree to indemnify, defend, and hold harmless the Company and the Company Affiliates from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable attorneys’ fees and legal costs, arising out of or in any way related to (a) your access to or use of the Service, Content, Listings, or Bookings, (b) your violation of these Terms; (c) your Member Content or (d) your interaction with any other Member or third party. The Company may, but is not obligated to, control the defense of any claim, including the settlement thereof.
11. Additional Terms
a. By using the Service, you consent to receive electronic communications from the Company. We will communicate with you by email or by posting notices on the Service. You agree that all agreements, notices, disclosures, and other communications that are provided to you electronically satisfy any legal requirement that such communications be in writing. Notices from us will be considered delivered to you and effective when either sent to your email address of record with the Company or when posted conspicuously on the Service.
b. The Company and the Members shall be excused from performance under these Terms to the extent that the Company or the Member is prevented or delayed from performing any obligation because of any reasonably unexpected act beyond its reasonable control, including (without limitation), weather conditions, pandemics, acts of war, acts of terrorism, insurrection, riots, civil disorders, or rebellion; quarantines, power or internet outages, or embargoes.
c. These Terms will be governed and construed in accordance with the laws of the State of Georgia and the United States of America, without regard to its conflict-of-law provisions. Other than disputes seeking injunctive relief, any dispute arising hereunder, or related to the terms hereof, will be brought exclusively through binding arbitration in the state of Georgia. Such arbitration shall be initiated by the parties within ten (10) days after either party sends written notice (the “Arbitration Notice”) of a demand to arbitrate. The dispute shall be resolved by binding arbitration before the American Arbitration Association (“AAA”) in the State of Georgia.
d. YOU AND THE COMPANY BOTH AGREE THAT ANY DISPUTE ARISING HEREUNDER SHALL BE BROUGHT STRICTLY IN AN INDIVIDUAL CAPACITY AND NOT AS A CLASS, GROUP, OR COLLECTIVE ACTION OF ANY KIND.
e. If any provision of these Terms or the application thereof to any person or circumstances shall, for any reason or to any extent, be invalid or unenforceable, the remainder of these Terms and the application of such provision to other persons or circumstances shall not be affected thereby, but rather shall be enforced to the greatest extent permitted by law.
f. The Terms constitute the full, final, and complete understanding of the parties as it relates to the subject matter hereof; except, however, that Talent Members will be subject to the additional terms of an executed Talent Agreement between the Company and the Talent Member.
g. The failure or delay of either party to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision.
h. You may not assign these Terms without the express written permission of the Company. The Company may assign these Terms as part of any sale of the Company or its assets.
i. You may contact the Company through the appropriate link on the Site.